Citation Nr: 1412931
Decision Date: 03/27/14 Archive Date: 04/08/14
DOCKET NO. 09-16 495 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana
THE ISSUES
1. Entitlement to an initial evaluation in excess of 30 percent prior to October 7, 2010, in excess of 50 percent from October 7, 2010 until January 30, 2013, and in excess of 70 percent as of January 30, 2013, for posttraumatic stress disorder (PTSD).
2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Dustin Ware, Associate Counsel
INTRODUCTION
The Veteran had active military service from August 1964 to August 1967.
This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.
Service connection for PTSD was granted by a May 2006 rating decision and an initial evaluation of 10 percent was assigned effective September 12, 2005 under the provision of 38 C.F.R. § 4.130, Diagnostic Code 9411. A June 2006 notice of disagreement was filed with the May 2006 rating decision. A statement of the case was issued March 2007. Additionally, in March 2007 a rating decision increased the Veteran's evaluation to 30 percent effective September 12, 2005. The Veteran filed a VA Form 9 in October 2007. The VA Form 9 was not timely as a substantive appeal of the May 2006 rating decision; however, it was a timely notice of disagreement with the March 2007 rating decision. Nevertheless, it was treated as a claim for an increased rating. An August 2008 rating decision continued the Veteran's 30 percent rating for PTSD. The Veteran appealed this decision. While the appeal was pending a June 2012 decision review office's decision increased the Veteran's evaluation for PTSD to 50 percent. A January 2014 rating decision set the effective date for the June 2012 increase to 50 percent as October 7, 2010. Additional, this rating decision increased the Veteran's evaluation for PTSD to 70 percent effective January 30, 2013. Thus, the issue on appeal involves a staged initial rating as the March 2007 decision set the effective date for the 30 percent rating to the date of the award of service connection.
The issues of entitlement to an evaluation for PTSD in excess of 30 percent prior to June 9, 2010 and in excess of 70 percent as of June 9, 2010, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
As of June 9, 2006, the Veteran's PTSD was manifested by depression, anxiety, hypervigilance, irritability, difficulty concentrating, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances; he has some limitation of social interaction and occupation functioning with GAF scores indicative of "serious" symptomatology.
CONCLUSION OF LAW
As of June 9, 2006, the criteria for an evaluation of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).
In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.
Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to receive a staged rating; that is, be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Veteran asserts that his PTSD is more severe than contemplated by the assigned evaluations. The Veteran has been assigned an initial evaluation of 30 percent effective September 12, 2005. The Veteran has been assigned an evaluation of 50 percent effective October 7, 2010 and an evaluation of 70 percent effective January 30, 2013. All evaluation were made pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411.
Diagnostic Code 9411 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, the currently assigned 30 percent evaluation is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula.
A 50 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. Id.
A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id.
The nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. While GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation.
The Veteran filed a June 2006 notice of disagreement (NOD) with his initial evaluation of 10 percent from PTSD. In the NOD the Veteran stated that his social worker and psychologist stated his evaluation should be no less than 55 percent and that another psychologist stated his evaluation should be 80 percent. On the Veteran's October 2007 VA Form 9 the Veteran states that he cannot have a lot of public contact with other people. He goes on to say that the medication he takes for PTSD affects his memory and concentration. A letter from the Veteran was received by the VA on December 20, 2007. In the letter the Veteran discusses needing to work in job's that do not require interaction with the public and with few coworkers because he has problems dealing with others. He mentions a recent July 4th where the fireworks caused him anxiety and sleeplessness. In a February 2008 statement the Veteran notes that his symptoms have gotten worse since his wife passed away because she was a nurse and could help him manage his symptoms. On his April 2009 VA Form 9 the Veteran discusses how he does not like to make close friends because they will die like the people he knew in Vietnam.
The Veteran was provided a VA examination in May 2006. The examiner noted the Veteran was late for the appointment because he had gone to the wrong building in the VA complex despite clear instructions. The Veteran appeared appropriately dressed and groomed. He was oriented to person, place, and time. His fund of information was impoverished. He could recall only U.S. Presidents back to George Walker Bush and thought that Nixon was the U.S. President immediately before Bush. It was indicated that the Veteran had impaired memory. The VA examiner further stated that the Veteran was sleeping well but only because of medication. It was noted that the Veteran was depressed but had no hallucinations or delusions. The Veteran indicated that he was not suicidal but did have suicidal thoughts. He also indicated he made one previous serious attempt to commit suicide.
The Veteran January 2013 VA examination includes a GAF score of 80. A GAF score ranging between 71 and 80 is indicative of symptoms, if present, that are transient and expectable reaction to psychosocial stressors with no more than slight impairment in social, occupational, or school functioning. See DSM-IV.
The Veteran was provided a VA examination in June 2008. The examiner noted the Veteran was friendly and easy to talk to, his attention span was grossly normal, and he had no formal disorder of thought. The Veteran's affect was appropriate and his mood was depressed. Perception was reported as clear. The examiner indicated that the Veteran had no suicidal ideation, homicidal ideation, delusions, or obsessions. It was noted that he has nightmares and intrusive recollections. In summary the examiner said the Veteran's psychosocial functional status is fairly poor and is characterized by residual symptoms of anxiety, depression, irritability, occasional nightmares, severe social withdrawal, and unemployment. The hyperarousal symptoms of irritability and argumentativeness were reported. In regards to socializing, the Veteran reported speaking to his daughter once a month and seeing her once a year. He also reported that he goes to a coffee shop two or three times a week and socializes with acquaintances. The examiner stated that by the Veteran's own admission his condition is roughly the same as it has been over the past 40 years.
The Veteran's June 2008 VA examination includes a GAF score of 45. A GAF score ranging between 41 and 50 is indicative of "serious" symptoms or any serious impairment in social, occupational, or school functioning (no friends, unable to keep a job). See DSM-IV.
The Veteran was provided another VA examination in November 2010. The examiner notes the Veteran's speech was normal and thoughts were organized. His mood was depressed and his affect was restricted, stable, tense, and dysphoric. The Veteran's cognition is reported as being unremarkable. The examiner indicated that the Veteran avoids certain people and fireworks because they cause him anxiety. The Veteran was noted to have hyperarousal symptoms including anxiety, anger, and irritability. In addition, the report makes clear the Veteran had nightmares and intrusive recollections. The examiner recorded no suicidal ideation, homicidal ideation, or psychotic features. The Veteran indicated that he sees his daughters occasionally and visits them about once a year. In regards to employment, the examiner notes the Veteran is unemployed but could work in a job meeting certain requirements such as minimal interpersonal contact, minimal stress, and an understanding boss. The VA examiner summed the examination saying that it does not appear that the Veteran's condition has changed since 2008.
The Veteran's November 2011 VA examination includes a GAF score of 45. A GAF score ranging between 41 and 50 is indicative of "serious" symptoms or any serious impairment in social, occupational, or school functioning (no friends, unable to keep a job). See DSM-IV.
A January 2013 examiner report indicates the Veteran's PTSD causes anxiety, hypervigilance, irritability, difficulty concentrating, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances including work or a work like setting. The Veteran indicated his mood was "okay" and he denied depressive symptoms or suicidal ideation. He indicated he camps out around July 4th to get away from fireworks. He desires to avoid gunpowder, crowds, and closed spaces. The examiner noted the Veteran has recurrent distressing dreams and recollections of traumatic events. The examination report also indicated that the Veteran has a markedly diminished interest or participation in significant activities and feelings of detachment or estrangement from others. In regards to social interaction, the Veteran said he talks to his daughter once per day and his step daughter once every two weeks. Occasionally a friend calls or comes over for coffee. The Veteran keeps in contact with his brother and sister once every one to two weeks. The examiner summarized the Veteran's examination saying "the severity of his [the Veteran's] symptomology has not significantly changes since his last rating examination." He goes on to say the Veteran "has some limitations in his social interaction preferring to stay to himself but he does interact with a few friends and family . . . ." In addition, he "has some limitations in his occupational functioning also, preferring to work by himself but has a history of consistent employment for long stretches of time."
The Veteran's January 2013 VA examination includes a GAF score of 45. As noted previously, a GAF score ranging between 41 and 50 is indicative of "serious" symptoms or any serious impairment in social, occupational, or school functioning (no friends, unable to keep a job). See DSM-IV.
The evidence indicates that, as of June 9, 2006, the Veteran's PTSD resulted in symptomatology that meets the criteria for a 70 percent evaluation. The Board acknowledges that the Veteran does not meet all of the criteria for a 70 percent disability evaluation. For example, there is no evidence of near-continuous panic attacks, spatial disorientation, or intermittently illogical, obscure, or irrelevant speech. However, there is evidence that he suffers from irritability and difficulty in adapting to stressful situations, with GAF scores indicative of serious symptomatology. Furthermore, the June 2006, November 2010, and January 2013 VA examiners have indicated that the Veteran's symptomatology has been consistent throughout the years. Each indicating that the Veteran's condition has not changed much since the previous examination. Under such circumstances, and when resolving reasonable doubt in the Veteran's favor, the Board concludes that an evaluation of 70 percent is warranted for PTSD. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. This is so from June 9, 2006, the date it is factually ascertainable that an increase occurred after the less severe May 2006 VA examination.
In reaching its decision, the Board considered whether an evaluation in excess of 30 percent was warranted prior to June 9, 2006 and whether an evaluation in excess of 70 percent is warranted as of June 9, 2006; however, a remand is required for more development before these issues can be addressed.
ORDER
An evaluation of 70 percent or PTSD as of June 9, 2006, is granted, subject to the laws and regulations governing the payment of monetary awards.
REMAND
The Veteran seeks entitlement to an evaluation for PTSD in excess of 30 percent prior to June 9, 2010 and in excess of 70 percent as of June 9, 2010, and entitlement to a TDIU. Records in the claims file indicate the Veteran has been in receipt of Social Security Administration (SSA) benefits. However, documents related to the SSA award of benefits are not part of the record and it is unclear whether he is in receipt of disability benefits or age-related benefits. In order to ensure that the Veteran's claim is adjudicated on the basis of a complete evidentiary record, the SSA records must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also 38 C.F.R. § 3.159(c)(2).
In addition, records in the claims file indicate that the Veteran received treatment at multiple VA facilities in Richmond, Indiana. Not all of the listed appointments for treatment have a record associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, VA must undertake efforts to acquire these records as they may be material to the Veteran's claim. See 38 U.S.C.A. § 5103A(b).
Finally, entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairments caused by non-service connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
The Veteran has repeatedly asserted that his PTSD renders him unemployable. The VA examiners have provided varying opinions on the employability of the Veteran. However, it is unclear if any of the VA examiners took into consideration the Veteran's level of education, experience, and occupational background in determining whether he is unable to secure or maintain substantially gainful employment in light of his service-connected disability. As such a remand is necessary to provide the Veteran an examination to determine whether the Veteran is unemployable.
Accordingly, these issues are REMANDED for the following actions:
1. Request and obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. A response, negative or positive, must be associated with the claims file. Requests must continue until the RO determines that the records sought do not exist or that further efforts to obtain those records would be futile.
2. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, all relevant records from the VA facilities in Richmond, Indiana should be obtained. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2).
3. After items (1) and (2) are completed, schedule the Veteran for a VA examination to assess his employability with respect to his service-connected PTSD. The claims folder should be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail.
The examiner is requested to provide an opinion as to whether the Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation.
The examiner must consider the Veteran's level of education, experience, and occupational background in determining whether he is unable to secure or maintain substantially gainful employment in light of his service-connected disability.
The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.
4. After completing the above, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefit sought on appeal is not granted, provide the Veteran and his representative a supplemental statement of the case. Allow an appropriate period of time for response.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs